President ial debates or if you are lucky at your summer barbecue but it is an important topic and for a number of reasons and then with the Nuclear Deterrence is so important and underappreciated man whose job it is to manage those Nuclear Weapons and conduct operations and for what they are asked to do that is legal and legitimate society owes them those so its not so simple but that legality may be distinguished from the legality of using Nuclear Weapons. And those that prevent you from having to do it. And a whole different set of legal considerations and that this kind of question and to be glad that it is being addressed here to be a part of this discussion and also to point out that is likely to become more salient over the next few years which again reinforces the idea between the excellent paper he has written on the legality of Nuclear Deterrence that is produced by the National Laboratory for Global Security research. It is free. You can download it from the website. Last night i googled it i look up legality of Nuclear Deterrence and the first thing that popped up was the advertisement for todays discussion and if you click on that there is a link. That would be an efficient way to do it. With a very long and distinguished career from the state department 2001 through 2017 with that legal office that dealt with that proliferation and arms control and with the essence of their analysis and ill make a few comments then open for discussion. Thank you to carnegie. Also brad roberts of the National Laboratory to provide me in producing for this opportunity to present my paper. 122 nations have Nuclear Weapon 69 declined to participate in the adoption of the treater treaty and with the Nuclear Nonproliferation treaty and has not entered into force ratification to be completed the weapons ban treaty was not drafted but if you review the treaty that is evident but seeking to delegitimize Nuclear Weapons and with those efforts with those avenues as well. And with that political justice the legality of Nuclear Weapons. And with that decision to pursue the topic. And with the use of Nuclear Weapons they all rode a separate or dissenting opinion. But only half of the judges supported the final opinion of the court and to the two critical elements of that finding, the first is a threat that is generally contrary to the rule of national law and by rules of International Law there referring to war or International Humanitarian law. In the second key finding was that the threat would be contrary to the law but that threat with a lawful or unlawful in extreme circumstances and with those findings the first i want to focus on is the key was the law of Armed Conflict. But those two critical elements been to bree be proportional then to distinguish between combat and a noncombatant and that concept is known as discrimination. I would get into that further later. That second key element where it cannot quite decide if it is lawful or unlawful. And under extreme circumstances it would be at stake. The third element is that main topic is that defining of illegality with both actual use and with that practice Nuclear Deterrence. And with those key elements i would like to find the elements they did not find. First of all to acknowledge that there is no Nuclear Weapons in International Law. There is no treaty that bans Nuclear Weapons all together and then those that possess a Nuclear Weapon in addition no prohibition against Nuclear Weapons under International Law. It is similar to commonlaw and a legal context and those that believe as a matter of legal requirement. What is that subtle practice . That would suggest Nuclear Weapons are indeed legitimate those allies that possess Nuclear Weapons and with that deterrent and that substantial minority if you count the allies as well as the actual state. But in addition they represent a huge percentage of the population the landmass of the planet as a whole. But during that nuclear era none of that purports to weapons all together. And the Nuclear Nonproliferation treaty that foundation allows for five states to continue with Nuclear Weapons that is provided for in the treaty. And there is a number of Nuclear Weapons in particular parts of the rural latin america, africa, asia, all of these have protocols because they also contemplate they can possess Nuclear Weapons and its very important to get assurances that they will not use those Nuclear Weapons against them. And those with nuclear stockpiles. With those three key elements but indeed the law of Armed Conflict with the threat or use of Nuclear Weapons was generally contrary to law. So this includes the United States and russia agreed that is different from the other types of weapons so mentioning earlier and those that are most applicable is proportionate which means the perspective harm of an attack must not be excessive to the military advantage gained from the attack. So that is the one of the mechanisms. And so with that military advantage that discrimination that the attack must be capable for the population. So this cannot be targeted as such. This does not mean there cannot be Collateral Damage. In with the military target. So now look first at the application of the principles of the law of work to the actual use with those Nuclear Deterrence. And then this raises a few eyebrows but the actual use of Nuclear Weapons would be very difficult to square with proportionality and any actual case that Nuclear Weapons are used to be disproportionate to distinguish between combatants and noncombatants. Under the Obama Administration it was directed to ensure the nuclear use plan provide with the International Humanitarian law and the plan with those populations per se but nevertheless without question they are doing the absolute best job that they can that certain concerns but first that nuclear use plan generally would be implemented in a hasty situation with incomplete information and under the circumstances the ability to choose which option best comports with the law of war. But second legitimate military objectives are not limited to the armed forces of your opponent or waging capacity. But also that sustaining activity like electric supply resources and other types of Industrial Facilities with that war effort without ability to sustain an attack. So with that broad range permissible targeting to have some part of that Collateral Damage that is permissible. And not to engage in the attack if thats too excessive and always has been some Collateral Damage. And those that would seek to limit the amount of Nuclear Exchange there is always a risk by one side or both sides leading to much greater devastation. Despite my belief that in most of these realistic scenarios very likely to violate the law of war and it is possible to say that every possible use definitely violates the law and in the absence of a legal basis i think the court was correct for making that blanket finding from that decision in 1966. And that second key alum line element is the exception to be identified by the court. And then not dispense you much time on this but in brief with no Legal Support for that exception. And in addition to that its not clear what they mean by surviva survival. Is that the survival of the state as a political enemy or a government . Is that in control of the state so which of those you cheese could jews could have it in effective what that consist of. So would be better off to stop at say we cannot determine nuclear use is illegal in all circumstances and not try to figure out that might constitute a possible exception. So that the the third key element of Nuclear Deterrence the icj is the thread of nuclear use and that is consistent with International Law and treated with the use of force. Therefore in conclusion the use of Nuclear Weapons generally would be illegal to apply to the Nuclear Deterrent if thats a threat through Nuclear Weapons. Even the us judge said most of the findings of the court concluded if it did not used in deterrence that they would not deter. That does constitute a threat. So nuclear use where is contrary to humanitarian law as long you want Nuclear Deterrence that is the conundrum of the court was grappling with sodas that constitute an illegal threat clicks again that was the main thrust of my paper. Clearly it is possible to make a Nuclear Threat that does violate if russia threatened ukraine to use that Nuclear Weapon as part of the territory that is a violation it is coercive and specific and a direct threat. But in my view that is not representative of the Nuclear Deterrence and the most important goal is to deter the impact. And then trying to ever and nuclear catastrophe. And if we are attacked there are a wide range of options in that option to use that in response to an attack. It is highly attenuated and contingent the state relying a Nuclear Deterrence and contingents so in those ways in my view Nuclear Deterrence is distinguishable from conventional weapons. And the station forces overseas and again to deter attack and then into regions of conflict to deter attack. On all of those have a contingency act. It was some of those they are more specific but those examples generally are not viewed as contrary to war and Nuclear Deterrence. In addition if youre assessing the applicability of war with Nuclear Deterrence it has to be based on facts so what is the nature and scope of the attack that you are responding to. On your side of the ledger what is the number of weapons that you use what step might you take to minimize Collateral Damage cracks all of that is highly factual its very difficult to do an assessment on humanitarian law. Is one of my colleagues wrote is difficult to accept the legality of the hypothetical use of a Nuclear Weapon of the hypothetical threats. And finally the principle proportionality with that use of force. And with the nature of the threat. And then take for example the response by the us is much greater in terms of use of force and to assure there is no recurrence of the attack. And with Nuclear Deterrence which is contingent that is even more latitude is justified. It is permissible for a Major Nuclear response and that i assume would be the north koreans that would have a massive retaliation. So to sum up i do agree that it is disturbing that a handful of countries either by miscalculation or stupidity it is disturbing and not just likely in reality that clearly the advocates are very dedicated so therefore its fair to assume not to just rely solely on the treaty to delegitimize and that could be the actual justice. And you never know what that outcome might be. And in my view if they found that Nuclear Deterrence is a legal. But then that led not comport with the actual reality of Nuclear Deterrence in the world but the mandate to interpret the law and attempting to make law and the decision to be lowered and criticized by the major powers. And even without Nuclear Weapons the elimination of the Nuclear Weapons requires hard work of treaty negotiations that shows the best Nuclear Weapons with the verification issues and no state is trying to reconstitute the new their weapons and in my view there is no the treaty approach. Thank you very much. We have a couple of thoughts that the first question that comes to my mind is with the likelihood or near likelihood and that could be catastrophic. And then it would be much better to have less weapons involved so my question is but just in general why do we focus more on how to spell it with conditions in terms of the sizes of the arsenals the type of weapons they are targeting cracks that would lower the probability of violating the laws causing humanitarian disasters. Thats a fair question. Is there is said of prescriptions you can come up with that make it much more likely the use of Nuclear Weapons and be consistent with national law . So what you are suggesting that would be a more achievable goal but i defer to and that they may increase the risk and thats worth the study if they have that expertise to engage in. And then those are questions are addressed in those terms. The lowest is north korea and then the highest is russia with a big spectrum between their. And with that propensity. And with the Nuclear Weapons but as i mentioned earlier the range of popular one possible options it would be a very wide range from what you are talking about. Strategic command in charge of operating forces and a major role in developing and targeting plans and operational plans for that and very explicit that they do all that as you said with the law of conflict. They have lawyers involved who are very serious going through all this. So we say that the guidance for employment of Nuclear Weapons should follow but was there ever a kind of review of that or kind of you know, back and forth as would have been in a legal argument on the same team, but for the purpose of saying we are going to borrow these principles but how would you do that here or there, does that ever happen . I signed in my paper and article by general keller former commander of the Strategic Forces who goes through what he viewed as a big change in their Nuclear Planning that they were starting to take into account and think hard about all these issues in having their lawyers involved in a way they hadnt previously. An interesting article i would recommend to everybody, but theres also been critiques of that approach to say as i mentioned earlier you can have those plans to be as compliant as possible, but when push comes to shove how capable would you be exercising th the response ia way that does comport with the walls in situations that are in no doubt going to be taxing to say the least and where you have a wide range of options how do you consider those in a timely fashion so those are legitimate questions to ask in addition even though they comport with the wall of the war there are and i was simply a very broad targeting and permissible targeting rules of engagement and when you talk about Nuclear Weapons engaging with the armed forces and capabilities like the weapons plan and sustaining capabilities the results could be the complete devastation of a country and the ability of the t country, that society to function and the impact on the population could be huge. From the other side for the last several years Public Opinion surveys and using Nuclear Weapons to get perspectives. Lets say the willing respondents were to see the u. S. Used Nuclear Weapons against for example north korea where when given a chance of one set of casualties that would be caused by the use of Nuclear Weapons versus a much higher set of of casualty is a surprisingly large numbers that do the higher casualties. It exists within the body politic as you are mounting up. Given what might have been the precipitating attack on the political momentum could be quite different and so these kind of conversations with people if they heard about it would say what, we have lawyers talking about this . There would be huge pressure if they had one u. S. City there would be pressure to respond in a massive way and that applies in other scenarios as well. Ive grappled with the question if the u. S. Sees a significant attack coming, but as the locality of a counterstrike are we trying to detour future strikes beyond that or do we simply want to retaliate because if you hit us we are going to hit you back, retaliation isnt a legitimate objectiv